Friday, August 30, 2013

Territorial Jurisdiction of the Consumer Court's

The biggest question that often baffles the Home Buyers when faced by deficiency and unfair trade practices of their respective colonizers is; which court would have territorial jurisdiction to admit their Complaint!! Most often, the Home buyers are mislead into believing that the Builder Buyer Agreement, mandates the place and court, which the Buyer has to approach, in case a dispute arises with the Builder. Here is a judgement of the Apex Consumer Forum which would help home buyers to understand the provisions and Objects of the Consumer Protection Act, 1986. The Apex Court in limine, allowed the appeal of home buyer, where the OP had contested the Jurisdiction of the court.

Interim Applications Nos. 1 and 2 of the 2010

First Appeal No. 426 of 2010

(From the order dated 24.09.2010 in Complaint Case No. C-9/208 of the Delhi State Consumer Disputes Redressal Commission, Delhi)
Neha Singhal
D/o Shri Anil Kumar Singhal
R/o 61, Ashoka Cresent
DLF City, Phase - I
Gurgaon -122 002
........ Appellant

M/s. Unitech Limited
6, Community Centre
Saket, New Delhi – 110 017
........ Respondent
Interim Applications Nos. 1, 2 and 3 of the 2010

First Appeal No. 442 of 2010

(From the order dated 24.09.2010 in Complaint Case No. C-9/176 of the Delhi State Consumer Disputes Redressal Commission, Delhi)
Shri Abhishek Singhal
S/o Shri Anil Kumar Singhal
R/o 61, Ashoka Cresent
DLF City, Phase - I
Gurgaon – 122 002
........ Appellant

M/s. Unitech Limited
6, Community Centre
Saket, New Delhi – 110 017
........ Respondent

For the Appellants                   Mr. Vikas Tomar, Advocate

Pronounced on  18th February 2011



            These two appeals arise from two separate orders dated 24th September, 2010 passed by the Delhi State Consumer Disputes Redressal Commission, Delhi (in short, ‘the State Commission’) in complaint cases Nos. C – 9 / 2008 and C – 9/ 176. Though the orders are separate, they are identically worded and involve the same issue, viz., the territorial jurisdiction of the State Commission to entertain the above-mentioned complaints.
2.     Observations in this regard made by the State Commission are re-produced below:
A preliminary objection has been raised by the OP builder by filing an application about this Forum having jurisdiction to try the case. It has been pointed out by the counsel for the OP that there is clear agreement between the parties to the effect that any complaint in this regard be filed at Noida, Gautam Budh Nagar. The contention from the side of the company is that the agreement was executed between them in Delhi and the payment was also made in Delhi, and the registered office of the OP builder is also in Delhi, and that is why Forum at Delhi will have jurisdiction.
We have heard Shri Vikas Tomar, counsel for the complainant and Shri Sunil Goel, counsel for the OP.
If there had been no agreement between the parties about jurisdiction, the Delhi Forum would certainly have jurisdiction to try the case, in accordance with Section 11 of the Consumer Protection Act, 1986, but since the parties have already agreed, the Courts only at Noida, Gautam Budh Nagar shall have jurisdiction, and the complaint can lie only at Noida, Gautam Budh Nagar in the State of UP.
In view of the agreement, the complainant is estopped and cannot resile from the agreement. Justice and fair play, and judicial ethics demand that the parties should be made to adhere to their mutual agreement and the only Forum at Noida, Gautam Budh Nagar in the State of UP where it shall have jurisdiction to try the complaint”.
3.     Thus, the State Commission proceeded to dismiss the complaint in limine entirely on the ground of its territorial jurisdiction citing the provision of a specific clause relating to this issue in this agreement between the parties.
        In a similar case (FA No.  425 of 2010 – Munish Sahgal vs DLF Home Developers Limited), the State Commission had taken the same view. The above-mentioned appeal was allowed by this Commission, vide order dated 9th February 2011, based on the decision dated 11th April 2002 of a 3 – Member Bench of this Commission in FA No. 142 of 2001 (Smt Shanti vs M/s. Ansal Housing and Construction Ltd.) The only point of some relevance in this case is that the housing property in question is located in NOIDA, Gautam Buddha Nagar, Uttar Pradesh. However, that fact alone cannot suffice to oust the territorial jurisdiction of the (Delhi) State Commission to adjudicate upon the complaint, in view of the specific provisions of section 11 (2) (b) of the Consumer Protection Act, 1986 (‘the Act’). To emphasise, the clause relating to jurisdiction of “courts” in the agreement between the parties cannot by itself over-ride the statutory right of the appellant/ complainant conferred by the above-mentioned provision of the Act – that would defeat the purpose and object of the Act. This view is also in accord with the provisions of section 28 of the Indian Contract Act, 1872 (as amended with effect from 8th January 1997).
5.     For these reasons, the impugned order of the State Commission is set aside and both the appeals are allowed in limine. The complaints are, therefore restored to their original status, for the State Commission to consider and adjudicate upon in accordance with law, after affording due opportunity to the parties. The appellants shall remain present before the State Commission on 21st March 2011 to receive further directions.

[ Anupam Dasgupta ]
                                                                                                                Presiding Member

Monday, August 26, 2013

IN Interest of Equity & justice: National Consumer Court

Here is a verdict of the Apex Consumer Forum; wherein the Court ordered equitable penal interest to the complainant as was charged by the colonizer.. please go through this very useful judgement.................


(From the order dated 20.11.2009 of the Haryana State Consumer Disputes Redressal Commission, Panchkula in Appeal no. 609 of 2006)

Haryana Urban Development Authority
Through its Estate Office, Gurgaon
Haryana                                                             Petitioner


Pawan Kumar Gupta
Son of Shri C P Gupta
43 Sarojini Park                                                  Respondent
Shastri Nagar
New Delhi – 110 031

                    HON’BLE MRS REKHA GUPTA         ,   PRESIDING MEMBER

For the Petitioner                         Mr R S Badhran, Advocate
For the Respondent                      IN PERSON
Pronounced on 10th July 2013

        Revision petition no. 857 of 2010 has been filed under section 21 (b) of the Consumer Protection Act, 1986 against the order dated 20thNovember 2009 passed by the Haryana State Consumer Disputes Redressal Commission, Panchkula in First Appeal no. 609 of 2006.
        The brief facts of the case as per the respondent/complainant are as follows:
        The respondent had applied for allotment of 10 Marla Plot in Sector 9, Gurgaon to the Petitioner/ Opposite Party vide application no. 014712 dated 20.08.1992 and has deposited earnest money of 10% amounting to Rs.22,836/- in cash on 20.08.1992.
        Respondent was allotted a plot bearing no. 1184 ad-measuring 10 marlas, i.e., 220 sq mtrs, in Sector – 9, Gurgaon vide memo no. E O (G)/ ALT – 9/ 961 dated 09.07.1993 issued by the petitioner and a sum of Rs.34,924/-, i.e., 15% of the total tentative price was deposited with the petitioner vide Bank draft no. 283813 dated 24.07.1993 drawn on SBI, Laxmi Nagar, Delhi and thus 25% of the total price was paid at the time of allotment and the balance 75% sale price was payable in 6 yearly instalments. The respondent has also deposited Rs.1,51,031/- towards the cost of additional price i.e., 574/- sq. yds, as desired in notification no. 7904 dated 03.05.1999. Thus full and final payment has been received by HUDA in 1998 and escalated price also on 23.03.2002.
        The respondent has paid Rs.3,80,031/- as per the above list enclosed and the petitioner had received full and final payment but they unduly delayed the possession of plot for no fault of the respondent causing undue harassment, mental agony and irreparable loss.
        The above said plot was allotted to the respondent with a provision to offer possession of the same after completion of its full development in the area at the earnest and not later than two years. But now more than 12 years have passed since the date of allotment of the said plot and the petitioner has not bothered to offer. The possession of the said plot to the respondent till this date after completion of full development work in the area, inspite of repeated requests and personal visits to the office of the petitioner.
        Time and again, the respondent has visited the site. During long spell of 12 years, the petitioner neither developed his site well nor supply of sewage system, water supply and other amenities. Facilities like community centre, school, health centre required for the residential colony as declared by the petitioner, has yet to be provided.
        Furthermore as the possession was not given even after 12 years it has another impact, i.e., the cost of construction, cost of steel, cement, building material and labour charges etc., has increased approximately by 300%. Thereby what could have been done at a cheaper rate, will now, be done with more.
        The petitioner/ opposite party in their reply have stated that paragraph no. 4 of the complaint is wrong, baseless and hence denied. The area of this plot is fully developed and only thereafter physical possession was offered to the allottee vide this office memo no. 2749 dated 29.06.2001. As per the terms and conditions of the allotment the respondent/ allottee was given an offer of possession, but the allottee failed to even start the construction work and hence he is bound to pay the extension fee as per HUDA policy.
        Paragraph no. 7 of the complaint was also denied by stating that the area is fully developed and physical possession had already been offered to the allottee on 29.06.2001. The allottee failed to start the constructions and complete the building within two years from the date of offer of possession.
        The District Consumer Disputes Redressal Forum, Gurgaon (in short, ‘the District Forum) came to the following conclusions after going through the file and hearing the parties:
Possession has been admitted to have been delivered during the proceedings. As per application dated 16.12.2005 conveyance deed is not being executed. It is ordered that the same be executed on furnishing papers by the complainant, if any, besides the complainant is awarded interest @ 18% per annum on deposits from the dates of deposits till the delivery of possession of his plot on the spot by demarcation and this interest is being awarded keeping in view the rise in construction cost so as to compensate him as he has been waiting for the plot since, 1993. During the arguments counsel for the complainant contended that another illegal demands have been raised vide memo no. 17260 dated 15.09.2005. We have perused the said letter Rs.8,246/- have been demanded as instalments due to on 15.10.2005 and Rs.88,335/- towards enhancement which could be recovered as per terms of the allotment. However, Rs.14,565/- demanded as extension fee could not be demanded as physical possession was delivered only on 24.10.2005. This last demand is struck down and this amount is ordered to be refunded to the complainant with interest as per HUDA policy from the date of deposit till the date of refund. As regards the plea that the complainant had already paid amount of instalment and enhancement in 10/99 and March 02 respectively, he has not mentioned any receipt number or date. He can agitate the matter again with the HUDA and in case the complainant paid amount of instalment and enhancement double, respondent is liable to refund the said amount to the complainant along with interest from the date of deposit till the date of refund as per HUDA policy. There will be no other orders as to costs. Compliance of the above order be made within one month from the receipt of the copy of this order”.
        Aggrieved by the order of the District Forum, the petitioner/ opposite party filed an appeal before the State Commission.  The State Commission in their order has recorded that “none has put in appearance on behalf of the appellant. Perusal of the file shows that this appeal is old one and relates to the year 2006. No one has taken care to appear on behalf of the appellant before this Commission from the last four consecutive hearings, i.e., 11.06.2007, 29.08.2007, 17.01.2008 and 27.01.2009. Even today none has appeared on behalf of the appellant. Since this appeal is old, therefore, we do not find any justification to adjourn the case time and again. Hence we proceed to decide this appeal after going through the case file”.
        The State Commission thereafter came to the following conclusion:
We have gone through the impugned order and taken into consideration the facts and circumstances of the case and are of the view that it is a case where the plot no. 1184, Sector – 9, Gurgaon was allotted to the complainant on 09.07.1993 whereas the physical possession of the same was handed over to the complainant on 24.10.2005 during the pendency of the proceedings before the District Forum, i.e., after a period of more than 11 years, which itself shows deficiency in service on the part of the opposite party. Therefore, we do not find any ambiguity or illegality in the impugned order passed by the District Forum. No case for interference in the impugned order is made out.
        No merit. Dismissed”.
        Hence, this present revision petition.
        The main grounds for the revision petition are as follows:
-          Forums below erred in facts and law, and have misread, misconstrued and misinterpreted the documentary evidence available on record and also the mandatory provisions of law applicable on that fact while passing the orders dated 20.11.2009. In fact the counsel for the petitioner was not present at the time of deciding the matter which devoid the petitioner herein being heard and explain the position of the matter before the State Commission. The petitioner thus lost the opportunity to bring the true facts before the Commission.

-          The Forums below failed to appreciate that the respondent herein is bound by the terms and condition of the allotment letter as well as provisions of Act, Rules and Regulation, policies instructions framed and issued in this regard from time to time. The respondent herein is bound by the aforementioned rules, instructions and policies of the petitioner herein and to pay the outstanding amount as demanded by the petitioner herein.

-          The Forums below have not taken into consideration that the offer of possession of the plot was made after completion of all the developments works on 29.06.2001. However, it was the respondent herein who instead of taking the possession filed the complaint with ulterior motives. The complaint was thus not maintainable. The District Forum has travelled beyond its jurisdiction in entertaining the complaint under the Act, which ought to have been dismissed.

-          The Forums below failed to appreciate that vide Memo no. 17260 dated 15.09.2005 demand of Rs.14,564/- as extension fees was rightly raised as the respondent herein has failed to construct the building as per the terms and conditions of the allotment and as per HUDA Policy. The Forums below erred in striking down the said demand even though the same was demanded as per rule and regulations of HUDA policy and as per the terms and conditions of the allotment letter.

-          The Forums below erred in awarding interest @ 18% per annum on deposits from the date of deposits till the delivery of possession of plot on the spot by demarcation. As already submitted the possession of the plot was offered on 29.06.2001 and it was the respondent who failed to take the possession of the plot, as such there is no deficiency in the service. Moreover the interest so awarded is too high.
I have heard the counsel for the petitioner and respondent in person and have gone through the record.
Nowhere in the revision petition has it been mentioned as to why no one had put in appearance on behalf of the petitioner/ appellant on the last four consecutive dates in the State Commission on 11.06.2007, 29.08.2007, 17.01.2008 and 27.01.2009. Thereafter the petitioner cannot complain that they were not given opportunity to bring the true facts before the State Commission.
The counsel for the petitioner drew my attention to the offer of possession dated 29.06.2001 and stated that it is the fault of the respondent that he did not take immediate possession. However, the respondent denied having received this communication. Counsel for the petitioner could not provide any evidence that the said communication had been received by the respondent.
Counsel for the petitioner then stated that the petitioner was objecting to pay 18% interest because as per the terms and condition of the allotment letter it was not due. He drew my attention to paragraph 7 of the allotment which states that “possession of the site will be offered to you on completion of the development works in the area, where situated”.
It is however, patently unfair that this clause is open ended with absolutely no time limit. The petitioner had taken full payment from the respondent by March 2002 with the first payment being taken in August 1992.
It is an undisputed fact that plot bearing no. 1184, Sector -9, Gurgaon was allotted by the petitioner to the respondent vide memo no. E O (G) /ALT – 9/ 961 dated 09.07.1993 at a tentative base price of Rs.22,836/-. Full and final payment including the escalated price was paid by 23.03.2002. However, the physical possession of the plot was given only on 24.10.2005. The respondent has now received both physical possession of the plot as also the conveyance deed. The petitioner is objecting to pay interest @ 18% per annum for the period upto 29.06.2001. The respondent has stated however, that since interest has not been paid till date, he should get the same even for the period beyond 2005.
In view of the above, we find that there is no jurisdictional error, illegality or infirmity in the order passed by the State Commission warranting our interference. However, as per the terms and conditions of the allotment letter, the interest payable by allottee in case of default is 15%. In all fairness and in the interest of equity and justice, the order of the District Forum is partially modified by reducing the rate of interest from 18to 15% per annum. Rest of the order stands as it is.
In view of the foregoing, the revision petition stands disposed of.

[Rekha Gupta]

Saturday, August 17, 2013

Interest on EDC:- National Consumer Court's Judgement

Here is what the Hon'ble National Consumer Forum decided on 1/08/2013 in the case of Mr. Rohthas Singh & ANR vs Ansal Properties & Infrastructure Ltd, wherein the grievance raised was whether the Complainant/home buyer is liable to pay Interest on EDC installments or not. The Court observed that the crucial point is, when was the 'EDC' paid and when was it deposited, by the Builder.
Please go through the judgement to get a fair Idea of the opinion of the law and the court in this matter;



 (From the order dated  30.11.2012 in Appeal No. 1127/2012 of the
State Consumer Disputes Redressal Commission, Haryana, Panchkula)

1. Rohtash Singh         , S/o. Sumer Chand
C/o Vijay Hood, H.No.13/20, 8 Marla
Radha Krishan Mandir, Panipat, Haryana

2. Smt. Santra Devi
W/o Rohtash Devi
R/o. H.No.13/20, 8 Marla
Radha Krishan Mandir, Panipat, Haryana                      …  Petitioners


M/s Ansal Properties and Infrastructures Ltd.
Narula Hotel, Panipat
Also at :
115, Ansal Bhawan
16, K.G. Marg, New Delhi                                                  …  Respondent                                                     

For  the Petitioners : Mr. Naveen Kumar Raheja, Advocate

For the Respondent : Mr. Dalip Mehra, Advocate
                                    Along with Ms.Sugandha, Advocate


1.      The controversy  revolves  around the question, “Whether the Sh.Rohtash Singh, complainant No.1 and Smt.Santra Devi, his wife/Complainant No.2, are liable to pay  interest?”. M/s.Ansal Properties & Infrastructure Ltd., the respondent,  claimed interest upon External Development Charges (hereinafter referred to as ‘EDC’, in short), from the petitioners, under Clause 2 of the Agreement, which runs as follows:-
          Apart from the above internal services, if any external and/or peripheral services are provided by any Haryana Urban Development Authority or any local authority for any bigger zone and any charges is levied thereof and/or any other charges are levied in any respect, the same shall also be payable in addition to the aforesaid price of the plot and be paid on pro-rata by the buyer as determined by the Director, Town and Country Planning, Haryana”.

2.      The complainants bought a plot in Sushant City Project of the respondent/opposite party in Panipat  vide agreement dated 24.04.2010.  The complainants contend that  they have paid entire sale  price and other  charges of the plot as per the terms and conditions of the agreement. However,  the complainants  were  astonished to receive a demand notice from the opposite party, in the sum of Rs.4,63,964/-, on account of interest on the EDC.  The complainants filed complaint before the District Forum alleging that there was deficiency in service. 

3.      The opposite party raised the following defences in its  written  statement.  As per clause 2 of  the agreement,  the complainants are bound to pay the said amount. The  opposite  party  explained  that  there were two options for the complainants to pay the EDC, i.e., either in lumpsum or in installments.  The complainants chose to make the payment of  EDC, in installments.  Had  they  paid  the EDC, in lumpsum, they would not have been charged the interest, but in  the case of  payment  of  EDC, in installments, the  interest was  charged.  It was explained  that  at the time of calculation of  installments of EDC, due to calculative  mistake,  the interest  was  not included in the installments.  It  is averred that OP is not claiming the interest on the ground of delayed  payment  by the complainants to the OP but the same  was to be deposited by the opposite party/petitioner with  Haryana  Urban Development Authority.  It is common knowledge  that  if the amount  is to be paid in installments,  then  interest is to be charged on the principal amount.  Out of 1139 allottees, 283 allottees have already paid  the interest portion on the basis of subsequent  demand  notice made  by  the respondent.  The respondent  realized  its mistake  in  August, 2010  when  the Audit Report was filed.  The District Forum, Panipat has no jurisdiction and  only  Delhi Consumer Fora  have got the jurisdiction. HUDA is a  necessary party.

4.      OP  has  placed  on record the copy sent to the complainants dated 28.12.2010, wherein, the said amount  was demanded.  The said
letter runs, as under:-
“Dear Sir/Madam,
Due to an oversight, we did not charge you interest for the period over which external development cost installments were scheduled to be payable by you even as interest is payable by us to the Government. The fact of non-charge of interest can be verified by you from the facts on record in the letter of allotment.
Accordingly, you are advised to pay a sum of Rs.4,63,964/- being the dues on account of interest thereon without prejudice to other sums payable by you as part of the sale consideration and as per our terms and claims thereof.
In case you need any clarification, you are requested to get in touch with our local sales office at 0180-2649601/02/03.
Sd/- 28.12.2010”.

5.      The petitioner  has  also  placed on  record  the total statement of account. 

6.      We have heard the counsel for the parties.  Counsel for the petitioner/OP has cited three authorities which were reported in :-  (1) M/s. Mackinnon Mackenzie & Co.Ltd. Vs. Audrey D’Costa & Anr., SLP (Civil) No.1265 of 1987, decided on 26.03.1987;  (2) Sri Tarsem Singh Vs. Sri Sukhminder Singh, SLP (C ) No.4639 of 1998, decided on 02.02.1998; and (3) A.P.Kochudevassy Vs. State of Kerala, A.S.No.177 of 1976 (High Court of Kerala),  decided on 05.11.1981.

7.      In these authorities,  it was laid down that the parties are bound by the agreement. 

8.      We do not pick up a conflict with this legal proposition.  However, we find  that  the defence  set up by the petitioner is vague, evasive, ambiguous and leads us, nowhere.  In absence of clear facts, the petition does not begin to jell.   Dollops of mystery  surround  this case.  It is not clear  whether  the complainants  were informed about the fact  that  they will have  to pay interest, if they will  pay EDC, by installments or  not.  There is no such inkling in the agreement.  There is no evidence that this position was made clear to the complainants. 

9.      We are of  the  considered  view that the case should be remanded to the District  Forum, Panipat,  and we, accordingly, remand the matter to the District Forum, Panipat.  Both the parties are given opportunity to lead their respective evidence, on this point.  This is a material  point and  if  the respondent/OP  has failed to  disclose  all these facts to his clients, in that event, it would be deficiency on its part. 

10.    Secondly, all the details regarding payment of installments were
not furnished.  This  was also  not shown  that the installments  were paid to the Government/HUDA, immediately, which delayed the above said deposit  of  the amount, is a fact,  which is shrouded in mystery.  The documentary evidence should be placed on record before the District Forum, Panipat, to show that the respondent/OP was prompt in depositing the amount, with the  Government/HUDA.
11.    Thirdly, it is not clear, as to “When the amount was paid and when the amount was deposited?”.  Was there any delay in depositing the amount on the part of  the respondent/OP?  In that event,  the petitioners/complainants  should not  suffer  for the  same.  Clear cut evidence should come on  the record. Is it a case of contributory negligence?.  If so, what is its effect?  Each day’s explanation is required.  The Circular of  the Government/HUDA that  the money should be paid immediately,  and  in that event, no interest should be charged, and if it is paid in installments, only then interest could be charged,  was  also  withheld.  Both the parties and, particularly, the respondent/OP  is  given opportunity to bolster  its case with  solid and unflappable  evidence. The  main crucial  point  is,  when the ‘EDC’ was paid, and when it was deposited.  The  parties  are directed to appear before the District Forum, Panipat, on 04.10.2013.  The District Forum, Panipat, will try to expedite this case.
          The revision petition is disposed of, in above terms.

    (J.M. MALIK, J.)


                                                        (DR. S.M.KANITKAR)



Tuesday, August 13, 2013

Apartment:- Meaning as per Indian Laws

An apartment, colloquially speaking, is a self contained housing or dwelling unit that occupies part of a building. In most commonwealth nations including India, an apartment is commonly known as a Flat. The concept of apartment came about due to increasing population and scarcity of available land to meet the growing need for housing, for an ever increasing population. To effectively cater to housing needs of crores of Indian, it was thought best to follow the system of vertical growth, whereby Flats or Apartments would be allowed to be sold to public at large who would own the said spaces within the said apartment and co-own or co-share the other areas as common property. To provide ownership of said unit, make it heritable and transferable property and define the common areas and facilities and the percentage share of each apartment owner in the apartment building the Apartment Ownership Act, was enacted. Housing being State subject, each State depending on available need and infrastructure, legislated somewhat similar versions of Apartment Ownership Acts. In Maharashtra it came to be known as The Maharashtra Apartment ownership Act, 1970. In West Bengal, the same was legislated as The West Bengal Apartment Ownership Act,1972. (Below is a list of various Apartment Ownership Acts of various States)

Legally speaking, as of today, most States in India have somewhat different meaning of an "Apartment", In Haryana, Maharashtra etc, an Apartment means, " a part of the property intended for any type of independent use, including building having one or more rooms with enclosed spaces located on one or more floors or any part or parts thereof, to be used for residence, office or for practicing any profession or for carrying on any occupation, trade, business or manufacturing or other uses related to information technology or for such other type of independent use, as may be prescribed, with a direct exit to a public street, road or highway or to a common area leading to such street, road or highway and includes any garage or room (whether or not adjacent to the building in which such apartment is located) provided by the Colonizer/owner of such property for use by the owner of such apartment for parking any vehicle or for residence of any person employed in such apartment, as the case maybe'.

On the other hand, States such as West Bengal, Himachal Pradesh and Kerela etc, define an Apartment as, " a part of the property  intended for any type of independent use, including one or more rooms or enclosed spaces located on one or more floors ( or part or parts thereof) in a building intended to be used for residential purposes and with a direct exit to a public street, road or highway or to a common area leading to such street, road or highway".

From the above definitions it is evident, that there exists a major and substantial difference in the meaning assigned by different States to an Apartment. In Haryana or Maharashtra, meaning of apartment is obfuscated with the usage of the space, like office or for practicing any profession, trade, business and even manufacturing  whereas States like West Bengal and Himachal Pradesh have quoted singular use of an apartment as Residential. This glaring discrepancy is negating and defeating the very purpose of the Act, which was to provide co-ownership of all common areas and facilities to the association of owners of the said apartment building. Due to these varied definitions in the States where the meaning of Apartment has been tweaked to incorporate different uses such as trade etc, the Colonizers have sold shops and other such facilities in the name of being an Apartment to third parties which it would not have been able to, had there been a singular meaning. It is pertinent to note that as per the Act the common areas such as shops, schools, dispensaries, service personnel flats and Community center etc all have to be co-owned by all apartment owners through an association. Therefore, definitions which give such large scope for manipulation to Colonizers, are creating unrest among the society, which invariably leads to humongous legal tussles between the State Authorities, Colonizers and apartment owners.

Usually all States have their respective Building Bye-laws that Govern the Construction and Development of the Group Housing Colonies. In Haryana, The Haryana Development and Regulations of Urban Areas Act, 1975. Similarly in Uttar Pradesh, The U.P. Industrial Area Development Act, 1976, govern the various provisions and regulations with respect to the building bye-laws of the particular State. It is evident from these Acts that the Statutory Authorities in each State are either issuing license's or leasing land to Colonizers for construction and development of a specific colony, either it is plotted colony, Group Housing colony or Commercial Complex, shopping mall or Information technology "Cyber Parks" or Industrial spaces. Therefore, before commencement of the project it is very clear to the Colonizer and the Statutory Authority, what the prescribed use of that colony would be after construction and development. Whether it would be used for residential, in case of plotted Colony/group Housing colony or it would be used for commercial purposes, like in case of shopping mall etc, or would be for setting up Industrial spaces, like SEZ etc,. For all different usages, the Building Bye-laws are different in each State, as prescribed by their respective Acts. The F.A.R, the Ground Coverage, the license fee, the lease rent etc all vary for each category of usage, as per rules that govern such activity in the State. For Apartment's in each State in India, the word residential is attached in almost all rules and regulations prescribed by various State Acts that govern the Building Bye-laws for Construction and development of planned urban development within each State. For Example in Haryana, The Haryana Development and Regulations of Urban Areas Act, 1975, defines under Section 2(c) The Colony as, " an area of land divided or proposed to be divided into plots or flats for residential, commercial, industrial, cyber city or cyber park purposes or for the construction of flats in the form of Group Housing  or for the construction of integrated commercial complex's". It is pertinent to mention that the Act is crystal clear in terms of the usage of Flats or plots when it prescribes, categorically the usage, as Residential. The same is further reiterated under Section 2(gg) where it defines a "Flat", " means a part of any property, intended to be used for residential purposes, including one or more rooms with enclosed spaces located on one or more floors, with direct exit to a public street or roads or to a common area leading to such street or roads and includes any garage or room whether or not adjacent to the building in which such flat is located provided by the colonizer/owner of such property for use by the owner of such flat for parking any vehicle or for residence of any person employed in such flat, as the case may be;". Therefore reading both the definitions together, it is evident that the law makers had a clear idea that the Flat or Apartment is a residential dwelling unit.

Then why have they not incorporated the same in the definition of Apartment in the "Apartment Ownership Acts", why some States have deemed it fit to assign varied, multiple and complex meaning to an apartment?? The problem that arises from such complex definition is that apartment owners in each State are fighting to get the Common Facilities back from their respective builders, who have sold the same under the pretext that according to the Act the shops etc are an apartment, which they have been allowed under the Act to sell. Isn't it time that either the Central Government through the Urban and Housing Ministry, directs the State Governments to follow a unified definition of an apartment or the Supreme Court upholds a singular definition for an apartment, which would simplify and erase ambiguity on its meaning through out India. Hope it is brought about soon, so that apartment owners, do not feel cheated and get the fair share of common areas within their respective group housing colonies.

Some of The Apartment Ownership Acts in India:-